About this Show

Supreme Court Preview

Series/Special. Looking ahead to some of the court's biggest cases next term. New.

NETWORK

DURATION
01:15:00

RATING

SCANNED IN
San Francisco, CA, USA

SOURCE
Comcast Cable

TUNER
Channel 91 (627 MHz)

VIDEO CODEC
mpeg2video

AUDIO CODEC
ac3

PIXEL WIDTH
704

PIXEL HEIGHT
480

TOPIC FREQUENCY

Us 11, Florida 6, Washington 4, California 4, Wisconsin 2, Paul Clement 2, Tom Goldstein 2, United States 2, Pittsburgh 2, South Carolina 2, Michigan 2, U.s. 2, Pennsylvania 2, The University 1, Rjr 1, The Southern 1, You 1, Michelle Obama 1, Ucla 1, Mitt Romney 1,
Borrow a DVD
of this show
  CSPAN    Supreme Court Preview    Series/Special. Looking ahead to some of  
   the court's biggest cases next term. New.  

    September 22, 2012
    11:00 - 12:14pm EDT  

11:00am
e the plan was wrong so far. when we got people engaged during the years about the holocaust, we had movies that really resonated with tens of millions of people. today, we talk about climate change. we talk about polar bears and shrinking glaciers. we do not talk about the fact that it is going to kill us as a species. it is the biggest threat to us ever. the very much so. he said maybe we need a more urgent kind of language and not concentrate on breaking up glaciers and polar bears, which is important but remote from the daily lives and millions of people. i think we have to bring it right that into issues of
11:01am
drought, ice storms, a famine, species ever going on. never again will a center be on the offensive. he will be on the defense. the certainly hasted be conveyed. we live in strange times. we have all the evidence and manifestations and precautionary urgency's. we cannot seem to mobilize people. this happens when you have high unemployment. it is when you have a fairly stable economy that you can make these in terms of regulatory action. does anyone want to add to lot? >> on that no comment before
11:02am
conclude this, if anyone wants to get the details on how each organization voted, they can go to this web site. thank you very much. goodbye. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> today, our coverage continues
11:03am
with remarks from president obama at a campaign rally in milwaukee. it is one month before early voting benz in wisconsin. see that rally live today at 6:45 p.m. eastern. right after that, michelle obama delivers remarks at the congressional black caucus foundation here in washington. her remarks start life at 730 eastern also on c-span. >> today millions of students are paying less for college. we finally took on a system that wasted dollars. we said let's give the money directly to the students. we have been able to help millions of young people get education. >> when he to make sure our kids are getting an education that will allow them to compete
11:04am
tomorrow. that is time for us to put the teachers and students first. >> beavers debate between mitt romney in president obama is less than two weeks away. questions focus on domestic policy. watch and engage was c-span, including our live debate preview. post-debate, your reaction. live coverage on c-span, c-span radio and c-span.org. >> now a preview with the supreme court's new terms. the court could also take cases on the voting rights act and same-sex marriage. david savage joined tom
11:05am
goldstein at the cato institute. this is one hour in 15 minutes. >> our conference concludes with a look ahead. this is a bit sparse. were and not for a obamacare, you could say that this coming term would be the term of the decade. in the first two sittings, the court will hear things on racial preferences and higher education and the fourth amendment as well as a follow up to the blockbuster from a few years ago, walmart. kato has helped in all of these. if granted they would become high-profile as well. then there are the multiple cases relating to gay marriage
11:06am
in the defensive marriage act. if you thought you're getting a breather, i am sorry to disappoint you. the author of this year's looking ahead s.a. is a partner -- is a partner. his argued 11 cases before the supreme court, or than any other lawyer in its history. born and raised in kansas, he received his ab from harvard. he clerked for antonin scalia.
11:07am
most importantly, he is my girlfriend boss. tom goldstein is a partner at gold steen and russell. after leaving, his first power-play was to remove his wife from the letterhead. he has given 25 cases before the supreme court. he teaches supreme court litigation. in 2003 he started a blogger that makes my life so much easier. the national law journal named him one of the most influential lawyers of the decades. gq named him one of the most of the influential people in washington. the national law journal twice
11:08am
named him under 40. ec were this is going. in 50 years we can -- you see where this is going. in 50 years weekend feel hill, and one of the top lawyers under 100. finally, david savage has been a supreme court correspondent for the los angeles time since 1986. he has had an excellent vantage point from which to observe the actions and changes over three decades. he is author of the supreme court which covered the efforts of the first bush administrations. he ao writes a monthly column and offers regular legal commentary. david to is not a lawyer and you're up in the pittsburgh
11:09am
area. -- who grew up in the pittsburgh area. >> thank you. it is great to be here to talk about the upcoming supreme court term. we have already had one mystery solved. now we know why he wore this very fetching suits. but not think i have much of a shot at that. your state has to be visible from outer space. -- your suit has to be visible from outer space. here i was thinking i was somehow privileged to be asked the pre before the supreme court review this year. i was simply asked because i happen to be his girlfriend boss. it was a privilege to have a chance to write the preview with my colleague who clerked for the
11:10am
chief justice a four years ago. i commend that two years ago or did i commend that to you. -- i commend that to you. he did ask me to talk about the criminal docket this year. i will be relatively brief. the criminal dockets is relatively limited. let me say a word. and the first substantive speaker about the upcoming term. i think it has potential to be a very interesting term. last term was a somewhat unusual term. perhaps never in the modern era has a single case so dominated the attention given to the court as it was true last year with the health care cases.
11:11am
it was the afternoon of the oral argument, and listen to the -- and was listening to the oral arguments. i happened to open up a twitter onlinon my computer. if you typed in health care or solicitor general or any relevant keywords, there would be hundreds if not thousands of hits and stuff coming up every few seconds. it is really hard to think of the supreme court case that compares. the health-care case really was the first major case of that magnitude in the internet era.
11:12am
certainly the biggest with the exception of a bush versus gore in my own career. in talking about next term, there isn't after the flood sense of what is going to come next. what is going to come next are a series of substantial cases. i am not sure any of them are going to measure up in terms of the level of public attention. there are cases of i think are deftly -- that i think our debt money going to be front-page stories. -- that i think are definitely going to the front page stories. the night is still young. the supreme court has less than half of its docket for the new year. to some extent this is going to be predictive exercise or all of us attempt to guess which cases
11:13am
will land on the court's docket. i am going to focus primarily on the fourth amendment. as someone who has argued fourth amendment cases in the past and has perhaps pay particular attention to that corner of the docket, and never ceases to amaze me that the supreme court rear for supreme court cases to put on its docket. the court sometimes will confront issues involving the applications of familiar fourth amendment principles to new technology. last term the supreme court had the united states versus jones case which includes ups tracking devices. i'm not sure anyone under the age of 40 with to that as new technology. by supreme court standards, they qualified. there is at least one case on the horizon that involves new
11:14am
technologies. it often involves all technologies. i thought i was let in at least one canine joke. this is the year the supreme court goes to the dogs. the court had no fewer than two cases in the application of the fourth amendment. these are both cases of oral argument on halloween. the court will have a fourth amendment day on halloween with these two cases including dogs nenest. the state of florida is the petitioner and both of the cases that the court will hear.
11:15am
of the two k nine cases, i think the case that is probably a greater interest is the case of florida versus jardine which is whether the dog can use a canine to sniff the outer up a callous. this is not in order to determine whether there is contraband in the house. it really involved the intersection of two basic fourth amendment principles. ordinarily does not constitute a search and therefore does not require additional level of individualized suspicion. the supreme court has so held this. if a job comes up to you as you are waiting for your luggage
11:16am
from a domestic flight, a docking come up to you with out more. the contraband is found, you will be subject. the question is whether that analysis is somehow different when the home is the context involved. some of you will recall that the supreme court in a case 10 years ago upheld the use of a thermal imaging device that is used to sense heat emanating from a house which is potentially a sign of illegal substances with in the house. it does constitute a search for for the men and purposes. that was written by an interesting majority -- for amendment purposes. that was written by a majority of liberal members and reaching the conclusion that it
11:17am
constitutes a search because of the enhanced nature of the technology. which of these two fourth amendment principles is going to be controlling? this is controlled by the general principle that dog sniffed are ok with out more or the fact that is being used in the context of the home sufficient? the other case this florida versus harris. it presents a somewhat more a technical question about the degree of qualification that a dog has to have an order to give rise to probable cause. the question is whether it is sufficient.
11:18am
these cases are going to be argued back-to-back on halloween. the other fourth amendment case is actually a case that i'm going to be arguing on behalf of the defendant the day before. it really will be fourth amendment week. it involves one of the questions you would have thought have long been since settled but has not been coming the existence of a conflict in the court of appeals. it involves one of the relatively few categorical roles of the supreme court has formulated under the fourth amendment. michigan versus summers, which held that police have the authority to detain the occupants of a search warrant regardless of the did cree -- the degree of individualized suspicion.
11:19am
there is out of a desire to ensure the orderly completion. our peace presents the question of how far the rationale extends. in our case, at the police were about to execute the search warrant at a house. they saw to individuals leaving the house. they were surveiling the house seemingly under cover. they proceeded to follow the individuals for a mile away from the house to detain the individuals and then bring them back to the house. the question is whether the justifications justify the extension of the rules.
11:20am
i was sent to tom spot if you're interested. the cato institute filed a very interesting one. it was prepared by katharine carol's and others. it supported this position of our client and argued that the rules should not be extended to this situation. there is yet a fourth fourth amendment case that could potentially land on the court dockets. this is another case in which we are involved with co-counsel. it is a case called maryland obverses team. it presents the application of fourth amendment principles in the context of the testing of dna evidence. this is a case involving the maryland statute for the testing
11:21am
of dna have been arrested but not yet convicted of a crime for the purpose of investigating other crimes. our client was arrested for assault. his dna was collected and then tested. that evidence was used with the prosecution. the question is whether that is permissible under the fourth amendment. it is an issue that presents a number of interesting subsidiary questions. they held up there was a fourth amendment violation perrin the chief justice indicated that the chief justice thinks that there is a probability that this will be granted.
11:22am
there is some degree of disagreement in the lower courts there has been relatively little written on this specific issue. there's a case that will be argued in the ninth circuit to mark the present similar issues. it is fair to say that the law is still developing. there are two cases that person some significance, whether they have a right to the competence during habeas corpus proceedings. the cases are ryan and tipples. i think they will be argued back-to-back. the supreme court has held that
11:23am
there is a right to essentially be confident at the point of execution. the supreme court has never confronted it. they had never spoken and whether there is a right for this in between. as a practical matter, those are cases that may be reasonably significant. with that, i will hand out to my colleagues to talk about the civil part of this. >> thank you so much. it is always a pleasure to be here. congratulate them for putting on such a great event.
11:24am
watching by video, you could come see the real thing. i am going to talk about the business dockets. while this can touch those of us who are criminal defendants, there are those that care about their relationship with the government comes to our individual privacy. when can the government have a dog sniffing us? id is less common that the business cases touch us so personally. i'm going to cover 10 cases. them ing to try to do summary form. the main events -- i'm going to frame the business docket for use in you have a sense of what is going on in the assumption that a lot of these will not
11:25am
have direct influence on your life. i would give you the case. i would describe for you the allegations. if this does happen to you, raise your hand. the plaintiff alleged that an overseas oil company conspired with the military government of nigeria to involve the nigerian government putting down the opposition. if that has happened to you, it is an important controversy. the statute says that aliens can bring tort suits in to u.s. courts. it is an old statute. the basis has to be a violation by some party.
11:26am
the court of appeals decided this case, of the nigerians are versus the overseas company. the supreme court had decided last company that interesting question. can you bring these suits against companies backed it became apparent that there is another bigger issue lurking in the case. does the statute apply extra- territorial a. congress wanted to apply, it so expressly.press le disapprove court will hear about this and the question.
11:27am
it will decide the question you could originally hear about. the obama administration has filed a brief that says maybe. it says ellis' when it comes to a suit like this one including a foreign -- it says when it comes to a suit like this that includes a foreign sovereign, that the statue should not be read to apply. they said sometimes the atf can this. to oversee extr it is not clear what law they will draw. these cases involve the foreign affairs relationship.
11:28am
it seems unlikely that the plaintiffs will prevail. it is important that a lot of companies face. they face human rights lawsuits. the supreme court is also going to take up the echoes of the famous walmart versus and case.ukes can you have a class action that involves many hundreds of thousand people who are supervised by lots of different people. it today at the commonality to produce a single class action -- do they have a commonality to produce a single class action lawsuit? the supreme court in the walmart case said and appointed in the
11:29am
direction of there are more merit type issues that should be decided at the beginning of a class action rather than later. what happens in these cases is under rule 23, what you're supposed to do is you decide whether or night this group of people have a common enough set of issues to justify them litigating together. sometimes they can be unwieldly. they can be incredibly important. it is a case that involves the fraud on the market theory of securities litigation. the idea is that you can have a class action that said even
11:30am
though each individual investor in the company may have to prove his or her reliance, under the sufficient market, that they will allow them to send that material information that goes out will be relied on by potential investors. that allows the cases to be litigated on an aggregate. several things should be decided by the judge before the class action gets under way, including whether there is an efficient market. the supreme court is taking up the question of whether the
11:31am
statement that was made was material. should that be decided at the beginning of the case or later? can make a big difference. the more that they can decide earlier on, the better chance than half of cutting up the class action at the beginning. -- the better chance of a half of cutting off the class action at the beginning. comcast dominating around philadelphia appeared befor. should the judge be siding whether there will be classed damages? these are just important lawyers cases for the proceedings which
11:32am
are significant issues. another case is ftc vs putney. have any the open and then sold a countywide hospital system? -- any of you opened and then sold a countywide possiblhospitl system? is it there by conferring any trust immunity? the supreme court has said the anti-trust law. if the state passes they'll all that will be anti-competitive, then the resulting business may have state anti-trust immunity. when the state says you can
11:33am
create a hospital system, is it there by trading antitrust immunity if the hospital cells in a way that creates a monopoly in the local area. closers' home is the civil rights case that arises. that is supervisor of liability. if you're going to sue your employer, you can not see the for something a co-worker does. it is not company policy. there is supervisor liability. the company can be held liable for its officers that tracked the operations of the employees. what does it mean to be a supervisor?
11:34am
can then is the supervisor of his girlfriends. he can fire her. we should all be careful. what kind of authority is required in order to trigger that? is adjusted i can tell you what to do? -- is it just that i can tell you what to do? >> i've been paying a lot closer attention. the case which i have not in a plan on talking about, it is called the u.s. airways period involves the question of this
11:35am
can happen to you. you may have a health benefit plan. he may have a pension plan. this usually comes up when you are injured. you sue someone who is responsible. the other person is at fault. the question is the ability of the plan to recoup that money from new, in particular in a situation where you get a $20,000 recovery but your lawyer takes most of it. you have $4,000 left. can they come and take the whole $20,000 for you even though you do not actually have all of that money. that is the famous case.
11:36am
the last case i would mention is arkansas game and fish. do any of you all have tens of thousands of acres of lands that are flooded on a recurring basis by the federal government? it is a very unusual audience. wire you hear? the question is what is the supreme court doing? the constitutional principle is the taking. the government either physically or their regulatory action can come and take our property. it is disputed whether the government has actually taken the property.
11:37am
this is interesting. every year for the past six years, various projects have flooded this land. as water is all want to do, it goes away. the next year it comes back. when it goes away you can have your land back. we only take it when we come in and the water stays there for a put a tank on it. -- or we put a tank on it. there are some cases that have language that suggests that permanent flooding is the only thing that will trigger this. the position is, on. every year we come along. they have taken our property. one is where he has filed an interesting and important serve
11:38am
petition. the issue is as follows. there are drug companies have patents. they invest a lot of money. there is a scheme encourages them and to challenge the validity of the patent or whether their products would in in french it. these are scheduled in an unusual way with the brand name agreeing to a number of factors. they could defer the injury. to what extent are agreements
11:39am
subject to scrutiny are not tax the notion is to exclude competition. there's nothing unlawful about that. the patentng beyond right. the patent is being challenged. kanno abedn has said there is a circuit conflict. three other cases. rjr has one. it says if you're going to get a pat it have to explain what it is you have a patent for. it is so i will know what it is that i cannot do.
11:40am
i know what has been created. you have to have a policy that opposes sex trafficking. what think that would be not that controversial. can the government say to you they have to address a personal point of view or it is ok? this was resolved and the other
11:41am
side gave up. under the fair housing act, which is a major piece of civil rights legislation they can allege that lenders are only offering particular rates to particular neighborhoods, whether you can bring a impact claim under the federal housing act. if you did not intend to discriminate, what you have done is illegal. this is all you need. they have not determined whether
11:42am
it is available under the act. thank you very much. thank you very much. [applause] >> thank you. it is good to be here. i have offered to form rossell tom earlier over -- i had offered to arm wrestle tom earlier. cases involving race and the gay-rights. thank you guys. there's a big college affirmative action case in october. a very old question -- can the government, this case is state university, give an advantage to restored because of his or her race to give an edge to black or hispanic students in the interest of diversity?
11:43am
changing the university. or does it violate the rights of a white student who says i was denied equal protection of the laws? interesting twist in this case. and what you should watch is the question of the so-called race neutral alternatives. about 15 years ago, 1997, a federal appeals court in texas have said, you may not use race for affirmative action at the university of texas. the state legislature, a mexican american woman sponsored a bill, passed and signed into law by then gov. george bush that said the state is going to grant automatic admission to its public universities, including ut autin for the top 10% a graduate and all i schools across the state. and this really transformed
11:44am
education in texas. now mexican-american kids in the rio grande valley, in houston or dallas, worldwide kids across texas suddenly had an opportunity to go to ut austin. over time, the percentage of minority students coming into the school steadily rose. the classic race neutral -- those kids were getting in because they did very well in high-school. but in two dozen for, after the supreme court had narrowly upheld race-based affirmative action in degeneres to michigan's case, texas announced there were going to go back to using race, but for a very limited part of the class. only about one-quarter of the freshman class. three-quarters of the kids come in under the race neutral plan, the top 8% plan, they scaled back a bit.
11:45am
one corridor come in under this holistic review or the university says, we are going to consider a lot of things about students. we want to deal with drug some discretion to pick our students. and university says, with a kid interested in architecture or music or plays the oboe, we want to be able to pick that kid. they are now defending the use of a race for a limited part of the class. this is how the case arises. after that happened, a young woman was turned down in 2008, she is a white student, sugar land, texas. she had good grades, but not excellent grades. she was not in the top 10% of our class. she could have gotten in, but as i said was turned down. so she sued and said, i was discriminated against. i would not think she would have a very strong claim.
11:46am
but she is able to say, texas has a process where race plays a role, and therefore, i was discriminated against. the fifth circuit, the panel courts in texas upheld the texas policy because they said, the supreme court has already said you can consider race in a very limited way, texas is doing that. but the supreme court then granted that. this is an interesting case because the middle of vote now is justice kennedy. justice kennedy has dissented in every affirmative action case, every race case, but he said in 2003 -- upholding the program. he has always opposed any use of race. in 2003, he wroote that he could -- he wrote that he could accept the notion that the
11:47am
university could consider race as one modest factor. but then he said before we approve a race-based admission scheme, we should seriously force universities to consider race-based alternatives. -- race neutral alternatives. so that is essentially is where we are now. here is the situation where there is a race neutral alternative that has brought a significant number of minority students in. university is saying we should be able to go further and consider race. one thing that surprised me -- i was down in texas and talk to people about the case. overwhelmingly, the university -- the minority students come in under automatic admission. it is than nine of 10 in some
11:48am
years. in 2011, 36% of the kids who came under the automatic admission or hispanic or black. under the laws degree do, about 17% or 18%. -- under the automatic review about 17% or 18%. they say something like, you at the university cannot have a race-based affirmative action plan if a race neutral policy could work. and that would beat -- could have an interesting impact. you could write an opinion as a texas only case. some would say texas is the only one that has had as much success.
11:49am
but it is interesting to watch a dent in that case. the other big race issue is the voting rights act, section 5. you know what this is about. since 1965, the south has been under a special scrutiny. you cannot change your election laws, you cannot change your voting rights laws until you get a pre clarence from washington, from the federal court of the justice department. the question is, it is that policy is so outdated and so on fair to the seven states that it should be easily struck down? and it strikes me that the five justices are going to be inclined to think, as they have hinted before, wait a minute, indiana, pa., wisconsin can pass a voter id laws, and those laws can go into effect even though they may have a real impact on foreign minority voters. but south carolina and texas
11:50am
have been blocked from having identical walls. at the it will be hard for the defenders of the coverage formula, that is the formula that says, only the southern states are under this rubric, to defend that when it seems that ohio and pennsylvania have the same sort of voting problems that texas or south carolina does. the court has a couple pending forces coming their way on that. in the journal du, they will hear one of those cases and i would think -- i think the general view, there will hear one of those cases, and i would think that -- the other big case we are confident there will take as the gay rights and defensive marriage act. this is not a question of
11:51am
whether gays can marry in states. the question is coming in states where gay marriage is legal, do those married gay couples have a right to equal benefits under federal law? the first circuit court up in new england acting on a suit by several gay couples in massachusetts, there were legally married in mass., but cannot file a joint federal tax return. or if one woman works the political service and her spouse is at home, can she be on the health care plan? this is a question of equal treatment group legally married gay couples. i think the will take this case and i think it is likely that justice kennedy, and more liberal justices are going to roll that this denies these legally married gay couples the equal protection of the laws.
11:52am
nothing about that opinion not necessarily says whether gays have a right to marry in mississippi or nebraska. it is only the states where gay marriage is legal. but that should be one of the very interesting important cases. because, another thing to watch is that the supreme court has never said what is the standard of review when there is discrimination against gays. in this case, they may be called upon to decide -- to say something about, is discrimination against gays generally unconstitutional, or generally ok? they have never really said. that is another thing to watch for in this case. the defensive marriage act will be decided later on in this term. i think i will stop right there. thank you. [applause]
11:53am
>> to you have anything else to add? >> i think it is worth mentioning that dakota -- the petition pending on the constitutionality of proposition 8. the challenge in which -- they represent a same-sex couple who which wanted to be married in california. is there a constitutional right to same-sex marriage? this is on the same timetable as these cases including the federal defense of marriage act. the question is, which of all of these cases the supreme court takes. and whether the supreme court might for instance take one or more of the cases involving the defense of marriage act, and the whole proposition 8 case -- or whether the supreme court will let 1000 flowers bloom and
11:54am
take all of the cases together. we will know the answer to that reasonably soon. >> our personal opinion is at the problems in a case is less likely to be taken, because the ninth circuit judges wrote the opinion -- he wrote it in a manner that is california and proposition 8 specific, so it is easier for them. >> questions? i should announce before that immediately following this, when this moves straight to lecture. so stay in your seat at that time. >> thank you. i have a question concerning the fisher case for any of the panelists. what impact you think would be
11:55am
played by the shelling that has been made, i know -- i believe one of the party breeks about the work of richard sanders, ucla, showing the impact of allowing students who are affirmative action, whether because they are legacy affirmative actions, racial or sex-based, with j.p. day or test scores lower than others in the class, the odds are that many will drop out. there's no empirical showing that affirmative action admittiees may be paying a huge price because of the statute that lets them come and about the qualifications -- it seems
11:56am
is counterproductive and they do less well than if they go to a second-tier school. >> anyone want to comment on me mis-match theory? >> in a set of studies -- it would make some people who are a little bit skeptical of affirmative action think, this is not even helping the kids it is supposed to help. but the reason i do not think -- i think there are five skeptics of affirmative action already on the supreme court, several defenders. i think it is an interesting research. i do not necessarily think it will change much of the supreme
11:57am
court. >> i read the book called a mismatch on the plane. i would tend to agree with that. you can see an opinion that already goes against texas, and this does not even help people. it probably will not turn on that. >> the only other thing i would say about fischer more generally, not quite to your question, but i do think it is interesting in looking at the merits brief dust are clearly that are targeted at justice kennedy, given the fact that did noted that justice kennedy has not in recent times ever noted -- voted to sustain an affirmative action program. some told me there are 50 name checks to justice kennedy alone. clearly people are picking up on the language from his opinion on race-neutral alternatives and trying to turn not to their advantage. for what it is worth, unusually hesitant to make predictions about outcomes in supreme court
11:58am
cases. i do think this is an area in which the -- have the potential to make it out, but has a positive difference. there's a sense in which the recent replacements -- on the issue of race i do not think that is true. i really do think the writing is probably on the wall and get to this case. >> i agree. the handwriting is on the wall. there been a number of things -- and justice o'connor was on the court, they are revisiting a lot sent justice alito was appointed. as as the auditor of the principal point in having graduated from -- there's an overlay on this case. the court took the case fully aware of that fact after long
11:59am
consideration. but one possible outcome is that it turns into a nothing burger because they decide it is an inappropriate way to decide this. other important questions like religion. >> more questions? >> very correctly, on the defensive marriage cases coming up, will the clause be impacted at all? or will this be a matter of federal benefit? >> remember, there are two parts of the act. when it was originally passed a dent in 1996, all of the talks then was this question of, the fear that if one state has gay marriage, all of the other laws will fall like dominoes.
12:00pm
two guys will get married in boston and moved to baton rouge and say, enough to honor our marriage. they passed this initially to say, states need not recognize same-sex marriages from other states. but that issue is not being challenged in this case. i do not know if you care to speculate why harold coe, who signed the first brief in the case, on the supplemental brief income of his name does not appear. do you think he's taking his way back to academia? thus he disagree my new leaf?
12:01pm
>> this is inside, baseball -- inside baseball, washington, d.c. kind of thing. it will be signed by the solicitor general office. agencies or departments that are heavily involved will sign the breeze as well. as was mentioned when this case came around as well, the state department signed the brief, an indication that the state department believed the foreign policy interests of the united states were impacted, and that they agreed with the brief that was filed. the importance to international relations has not gone down. the red the inference from the fact that the state department legal adviser did not sign on to the agreement, it portends that the legal adviser does not agree with the brief. >> you will let us know when you get the leak, right?
12:02pm
[captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] >> i have a question about the voting rights act. >> here is a former king opens to associate. >> i am. i'm very proud. i have a question. the gentleman was talking about empirical evidence. the judge laid out powerful empirical evidence as to the formula that was used and the criteria that was used dating back to 1973 and how there is simply no fit there any more. that was not convincing to the d.c. circuit. i was wondering if there is any prognostication that it would be more convincing to the supreme court. >> yes, it of the more
12:03pm
convincing. >> it is a cousin of a question about the misfit evidence when it comes to affirmative action. the justices have seen section 5 a lot. justice kennedy has written a lot about it. they have strong views to begin with. it will be mostly confirmatory for many of the justices that the list of the jurisdictions that are subject to the restrictions of section 5 was created in another era and when congress reauthorize the voting rights act for 25 years, hardly the list seems a lot like the old list, and there might be a misfit as well. for those justices, and there are likely at least four that the lead in the section 5 procedures, i do not think it is will change their mind, but it might confirm the views of the rest.
12:04pm
>> the section 5 and the voting rights act have such an important historic impact, and that is the main reason congress has not quibbled with the formula and the supreme court stopped short of striking it down three years ago. that was one of the most successful, effective laws in the 20th century. it changed the situation where blacks were simply barred from voting for all the south. for some many years, the southern states and municipalities had so many tricky schemes to prevent blacks from voting that it seemed the only way to do it was to put them under federal scrutiny. but, all the years down the road, it is much harder to say the seven states are totally different than ohio and pennsylvania. i have to write about this. a couple of weeks ago there was a decision involving florida. there are five counties in
12:05pm
florida that are governed by section 5, and 62 counties, the rest of the state, are not. there was a situation about cutting back on early voting in florida. the legislature cut back on the days for early voting. you could argue, and this court agreed with it, that this would have an impact on minority voters who voted heavily in the weekend before, but the court that handled the case basically had to say, and in writing if i had to try to explain it, this decision on the fifth couple of counties, and you would be hard- pressed to find a common theme. some small counties. one big county. in today's world, it seems like it made either of the state, or the whole country under this
12:06pm
special scrutiny if you will come up with these laws that seem intended to disenfranchise for people or minorities, or you should -- poor people or minorities, or say that none of them are. it is very hard to explain how the current formula can stay for 25 years at >> it is a bizarre list. 60 -- 6 of the states in the old confederacy ran them. three counties in new york state, all boroughs in new york city, i wrote that there are four justices from gotham on the court. maybe they can explain to the rest of us what is going on. >> the four counties in california -- monterey county, california. >> i would add one thing, which is i think the issue with the coverage formula, and to italy
12:07pm
with members of the court that are skeptical -- particularly with the members of the courts the skeptical about the validity of section 5 could essentially declared a coverage formula not valid without invalidating section 5 itself, as opposed to those on the court concerned about the reputation and of the court. the to basically say it goes back to congress to come up with the new formula. might be more fallen -- powerful than saying there is no way of skin in the section 5 cat. there is a much easier way for the courts resolve the case, the one that might have the same practical effect. goodness knows it is hard to get any legislation through the current congress. to try to get the current congress to agree on exactly
12:08pm
which states and some divisions of states are covered strikes me as potentially a very difficult political task. >> walter weather. you mentioned in your opening, the scope of the treaty power. if your return -- referring to the bond case, could you enlighten the audience and what that case it is and why it is important to get to the answer? >> sure. this is a part of a really good dissertation by paul clement, who will be speaking shortly. i joke with him that i make a living filing briefs according to his cases. he argues half of the supreme court docket every year, and tom goldstein gets the rest. this case, two years ago, just
12:09pm
like tom listed the cases that affect us, this is your garden variety federalism, adultery and chemical when the -- weapons. this woman learned that her best friend was pregnant by her husband, and instead of divorcing him, or arguing, she does what i am sure some of you might want to do, which is get some chemicals, not the dearly novel chemicals, but she has access due to her work in a lab, nothing too exotic, but she uses them and sprinkles them on the best friend's mailbox, the door handle to her car and other places she is likely to come in contact with. she gets hurt, chemical burns and what not, and this woman is charged with -- does she charged with assault or something like
12:10pm
this? now. she is charged with violating the federal statute that implements the international treaty on chemical weapons proliferation. so, the first question that comes to mind, the first issue the supreme court has to deal with, is can she even defend herself by attacking her prosecution? is the federal government of using its power by using this treaty-implementing scheduled to go after her? the federal government eventually changed its mind as well, saying we would let her defend herself and the court issued an opinion with strong language from justice kennedy writing from the majority about how the structure of provisions are there to protect liberty and things like this. it goes back down to the third circuit on remand, and the substantive argument is made that the federal government is
12:11pm
expanding its power by the street. without this treaty, it would not be able to prosecute her. by the president signing and the senate ratifying the treaty, it gives congress more power than it otherwise would have. that sounds odd. the federal government is supposed to have the powers the constitution gives it, and that is it. she makes this argument. unfortunately, there is a short opinion from the 1920's were justice oliver wendell holmes writes -- is not clear exactly, but it is interpreted to mean that a treaty can extend federal power. the third circuit said our hands are tied. the majority blinds us. they are reluctant to do so, and one judge writes to ask the court to take this up, clarify holland, overrule it, or do something.
12:12pm
that, with paul clement and became ill and said to filing an amicus -- the cato institute filing an amicus brief, and a senior fellow who has an article called executing the treaty power, and biting deeply into what the treaty power is all about -- died in deeply into what the treaty power is all about. hopefully, this will go up, and the court will say in a minimalist fashion you that at -- that you have been misinterpreting homes and it only applies to the treaty in the '20s. -- in the 1920's. [laughter] there was a hand way back there before.
12:13pm
>> alexander r. cohen. i would like to ask those with expertise in the craftsmanship of judicial opinions, on the test of the voting rights act, whether it is written in such a way that the supreme court could conceivably strike down the coverage formula, and leave the rest of section 5 standing, such that until congress acts, the prevailing law would be that preclearance applies nationwide. >> i think the really interesting question, and i am no expert either on the craftsmanship or the text of section 5, but i will take a
12:14pm
shot at this. it seems to me what the supreme court could do is essentially saying look, section 5 cannot really operate without a coverage formula, so while the ball is back in congress' court, to mix my metaphors, section 5 essentially can not operate without a coverage formula. i do not know how that dovetails with the language of the statute. >> it is the supreme court. they can find a way. >> i suspect there is enough flexibility to permit the court to do that, and looking at the way the case has been litigated, at least today, there is a heavy suggestion that that is option 1 for the court. again, the awkward this is to figure out a way to craft the interim remedy while congress is attemp t